The Conspiracy To Dismember Heller

This feature appears in the May ‘17 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.  

In a famous letter to Wilson Cary Nicholas, penned in September 1803, President Thomas Jefferson made the case for a faithful reading of the U.S. Constitution. It is possible, Jefferson acknowledged, for a person to read the same set of words and to draw competing conclusions as to their meaning. But, he added, that fact must not be permitted to become an excuse for imprecision or for corruption. “When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite,” Jefferson wrote, “I prefer that which is safe and precise.” 

“Our peculiar security,” he concluded, “is in the possession of a written Constitution. Let us not make it a blank paper by construction.” 

One can only presume that both this letter and its sentiments have escaped the attentions of the 4th Circuit Court of Appeals—which, in February of this year, took it upon itself to strike a serious blow against D.C. v. Heller, and thereby to undermine the Second Amendment at the root. Asked to examine a Maryland statute that prohibits the purchase of so-called “assault weapons” and limits to 10 rounds the size of purchasable magazines, the court used the opportunity to gut the right to keep and bear arms along much of the East Coast. Ignoring Jefferson’s wise rubric, the majority played a transparent parlor game with the precedents, the law and the English language, and bent itself toward a conclusion that was in no way supported by the text. The upshot? That in Maryland, the Carolinas and the Virginias, the Bill of Rights just got a whole lot smaller. 

The consequences of the ruling cannot be overstated. In essence, the 4th Circuit has contrived a brand-new constitutional “test,” the practical effect of which is the removal of Second Amendment protection from any firearm that a judge happens not to like. In Heller, the Supreme Court took three related positions: First, that firearms “in common use” may not be banned; second, that while “dangerous” arms may be regulated, only those that are “unusual” in addition are eligible for prohibition; and third, that a government may not ban certain types of guns on the understanding that other types remain available. In a follow-up case, Caetano v. Massachusetts, Justice Samuel Alito stated in his concurrence that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” Disgracefully, the 4th Circuit ignored all these prescriptions—which it was duty-bound to follow—electing instead to devise its own rule: that if a weapon is “most useful in military service,” it enjoys no constitutional protection. In so doing, the court thumbed its nose at its superiors and quietly rewrote the law for millions of Americans. By the 4th Circuit’s terms, the government could have taken (muskets and smoothbore rifles) away on the grounds that they were “most useful in military service”—which, of course, they were.

The problem with this standard is self-evident, for there is no weapon on Earth that could be placed outside of this description. Longswords are “most useful” within a military context, as are handguns, shotguns, crossbows and lever-actions. Your grandfather’s hunting rifle would have been handy at Normandy, just as his father’s trusty pocketknife would have been crucial in the Ardennes.

When the Second Amendment was passed, most Americans had just one firearm in their possession—generally, a musket or smoothbore rifle—and it doubled as their personal and their muster weapon. By the 4th Circuit’s terms, the government could have taken these weapons away on the grounds that they were “most useful in military service”—which, of course, they were.

That, naturally, is a farcical and historically illiterate idea, for there would be no purpose in a protection that could be so easily circumvented. But, alas, farce was the preferred order of the day. Not satisfied merely to assert incorrectly that “assault weapons” provide a unique danger to the Republic, the court elected to embarrass itself on both the facts and on the law. In the course of his opinion, Judge Robert King claimed that the AR-15 was “virtually indistinguishable” from the M-16 because it a) looks similar; b) can play host to some of the same aesthetic modifications; and c) can fire between 300 and 500 rounds per minute—or 30 rounds every 5 seconds. The first two claims are so shallow as to be worth ignoring entirely; the lattermost point, which formed the basis of the court’s argument, is flatly incorrect. As both the ATF and the U.S. Army note, the AR-15 can plausibly fire at around 45 to 65 rounds per minute, depending on who is pulling the trigger. Where, one wonders, was the court getting its information? 

And where is the limiting principle? If the AR-15’s supposedly swift rate of fire makes it an unusual weapon of war, then why isn’t every semi-automatic firearm accorded that designation, including the handguns that were explicitly mentioned and protected in the Heller decision? For an unstated reason, the 4th Circuit separates out rifles and handguns. But why? If there is any weapon in the United States that can be said to be in “common use,” it is the AR-15—the most popular rifle in the country. In fact, as the dissenting Judge William Traxler notes, if one limits oneself even to the most elementary research, one cannot miss the “unavoidable conclusion that popular semi-automatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.” Shouldn’t the AR be given the same treatment as a .45? Moreover, if this is to be the game, could it not be played the other way around? Since 1934, the federal government has treated automatic and semi-automatic weapons discretely under the law. But if, per King, they are “virtually indistinguishable,” doesn’t the rationale behind the National Firearms Act disappear? 

Also, lacking a limiting principle is the court’s baleful resuscitation of the idea that any gun ban is acceptable providing that it is not exhaustive—a proposition that was considered, and rejected, in Heller. As other courts have observed, such a standard would inevitably lead to a death spiral for the Second Amendment, as governments could pick the least-effective weapon covered under the term “arms”—a dagger, say—and prohibit everything else. As Justice Clarence Thomas is fond of reminding Americans, the Second Amendment is not a “second-class right” to be treated as a relic or a curiosity; it is an equal, indispensable, and unalienable part of the Bill of Rights. It would not pass muster under the
First Amendment for a state government to argue that it could ban newspapers because individuals still enjoyed access to Twitter, or vice versa. Nor would it be accepted if a particular church were banned on the understanding that others were left alone. The Court’s standards have been laid out, and the 4th Circuit is obliged to follow them. It has abdicated that obligation. 

To recap, then: Under the 4th Circuit’s hallucinatory regime, non-military weapons are military weapons; commonly owned firearms aren’t commonly owned; the “unusual and dangerous” standard is “unusual or dangerous”; and a semi-automatic rifle is, by some unknown and powerful magic, functionally identical to a machine gun. One can almost see Alice disappearing down the rabbit hole.  The court had the temerity to claim that to rule for the plaintiffs would be to set the question of regulation beyond the legislature’s reach. But that is precisely what the Second Amendment was written to do. That Maryland doesn’t like it is neither here nor there.

All of which would be amusing if it weren’t so deadly serious. For some, the old saw that “the Constitution is what the judges say it is” serves as a sobering reminder of the power of the office. For others, it is a tantalizing invitation to mischief. As so often, the trouble lies here in the detail: This wasn’t a dodge or a misjudgment on the 4th Circuit’s part, but an open rebellion against the law. The judges had an aim, and they found a way to stay true to it. Why bother waiting for amendments when you can strongarm your way into change?

For now, the decision is limited—to Maryland in practice, to the 4th Circuit’s ambit in legal terms. Courts, however, have a nasty habit of copying one another’s anti-gun “reasoning,” which means that it may not be too long until this ugly ruling comes to intrude elsewhere. And when it does, the result will be anybody’s guess. Perhaps one of King’s fans will conclude that a Glock is indistinguishable from an Uzi? Perhaps the shotgun will be recast as a “weapon of war”? Perhaps the 9 mm cartridge will be deemed outside of “common use”? Justifying its opinion, the court had the temerity to claim that to rule for the plaintiffs would be to set the question of regulation beyond the legislature’s reach. But that is precisely what the Second Amendment was written to do. That Maryland doesn’t like it is neither here nor there. It, like the 4th Circuit, is bound to follow the law as it is written, not to make it a blank paper by construction. 

Now will come the fight. On paper, this should be easy: Having seen its precedent so brazenly violated, the Supreme Court should step in to reverse the mistake. And yet, of late, such interventions have been rare. Before his death in February of last year, Justice Antonin Scalia was growing weary of his colleagues’ reticence on all matters Second Amendment—and to the point at which he and Thomas were filing fiery dissents against the court’s refusal to hear appeals. So the question now is, will the Court continue to ignore the deliberate resistance to Heller by the lower courts? 

If it does, it will be up to the people of Maryland to make their views known. Maryland is one of only six states (plus the District of Columbia) that prohibit America’s most popular rifle, and one of only a handful of jurisdictions that limit arbitrarily the size of magazines. If the state will not be told by the judiciary, it must be told by the citizenry: “No, you will not limit our rights, and we will not tolerate your abuse of the law.” 

Two decades after he wrote his letter to Nicholas, Jefferson provided still more constitutional advice. “On every question of construction,” he counseled, we must “carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” This injunction applies to voters as much as to judges, and to the legislature as much as to the courts. For a while now, the 4th Circuit has forgotten itself. It is time for the people it serves to remind it of its proper role under the Constitution.